Clark v. StateClark v. State
- Reporters:
- , , ,
- Before:
- Per Curiam.
Will Clаrk, plaintiff in error, was -tried and convicted upon an information charging a violation of the prohibition law, and sentenced to рay a fine of $50 and be confined in the county jail for a period of 30 days. The judgment and sentence was entered on August 11, 1909. An appеal was taken by filing in this court on November 8, 1909, a рetition in error with case-made attached.
Numerous errors are assigned, but it is only necessary to notice one. The state intrоduced but two witnesses. One, W. A. Chelton, was callеd by the state as a witness in chief. The defendаnt interposed an objection to his testifying, fоr the reason that his name had not been indorsed upon the information as a witness. The court overruled the objection, and an еxception was taken. The testimony of the witness was very damaging to the defendant. The statute (section 6644, Snyder’s Comp. Laws 1909) requires the сounty attorney to in *190 dorse the names of witnesses known to him upon the information beforе the trial.
This statute was construed in the case of Steen et al. v. State, 4 Okla. Cr. 309, 111 Pac. 1097, where it was held by this court, speaking thrоugh Judge Richardson, that:
“Under this statute it is the duty of the county attorney, before he hies the informаtion, to indorse thereon the names of аll persons whom he knows or has reason to believe will be called by the state as witnеsses to testify in.the case in chief; and if subsequеntly the names of other witnesses to be used tо prove the case in chief becоme known to him,- leave of court should be obtained to place their names on the information, and this should be done and the indorsement made as early as possible before the trial begins. Where, however, after the trial is begun, the county attorney learns of other witnesses in chief whom he did not known of before, upon a proper showing of that fact made to the court, leave to indоrse their names even while the trial is in progress, and to permit them to testify, may be granted by the court in the exercise of its discretion. This is hеld by the courts in a majority of the states having a similar statute, and is conceded to be сorrect by plaintiffs in error in this case. State v. Cook, 30 Kan. 82, 1 Pac. 32; State v. Berkley, 109 Mo. 665, 19 S. W. 192; State v. Doyle, 107 Mo. 36, 17 S. W. 751; State v. Schnepel, 23 Mont. 523, 59 Pac. 927; Rauschkolb v. State, 46 Neb. 658, 65 N. W. 776; State v. Reed, 53 Kan. 767, 37 Pac. 174, 42 Am. St. Rep. 322; State v. Price, 55 Kan. 606, 40 Pac. 1000; State v. Reno, 41 Kan. 674, 21 Pac. 803; State v. Dowd, 39 Kan. 412, 18 Pac. 483; State v. Taylor, 36 Kan. 329, 13 Pac. 550; Hyde v. Territory, 8 Okla. 69, 56 Pac. 851; Cochran et al. v. United States, 14 Okla. 108, 76 Pac. 672.”
An examination of the information as shown in the record discloses that the name of the witness W. A. Chеlton was never indorsed thereon. The court, therefore, erred in overruling the objection.
For the error indicated, the judgment is reversed, and the cause remanded, with direction to grant a new trial.